The Center for Individual Freedom has just published a paper by three RIAA lawyers that purports to develop a natural rights theory and history of copyright. The paper is short (6 pages long), which appears to be its only valuable quality. I’ll set out a brief critique below, but first I want to note that the paper’s mere appearance / existence is a fascinating signal. It’s an instantiation of copyright greenwashing: the content industry is trying to seed the academic and policy literature with pro-copyright arguments and justifications. (One would have thought they could afford more than 6 pages? But, with three law firm partners charging by the word, perhaps even the RIAA does not have bottomless pockets.) The reason this is interesting is that it suggests that the strong trend in copyright scholarship towards skepticism – towards the view that copyright law has become badly skewed towards overprotecting works, in a fashion that has adverse societal consequences – has become a concern for Hollywood. Otherwise, why bother with an academic paper?

I think there are two reasons for the shift. First, Mickey Mouse is due to fall out of copyright in 2018, and so the industry wants to get a head start on the debates over the next Copyright Term Extension Act. Second, and perhaps more importantly, the contretemps over SOPA and PROTECT IP was the first real instance of Hollywood not getting its way legislatively. There is a generation of digital natives who have been raised on suspicion of Big Content, and they are starting to attain political influence. So, one response to the fight over whether we’ve tuned copyright correctly (to get more movies, books, etc.) is to shift the battleground: treat copyright as an inherent right rather than an instrumental one. I think, then, that the appearance of this paper is a sign that Hollywood is not only nervous about its political strength, but that it realizes that legal scholarship makes some difference. (Law review editors: rejoice!) It matters not only because it frames debates effectively, but because a whole generation of students has been consuming copyright skepticism, and it’s having an effect.

Why greenwashing? Because this is a turgid advocacy piece masquerading as academic writing. It hasn’t been published by a reputable journal, nor reviewed by anyone other than the authors and their sockpuppet CIF. (Student-run journals are hardly a model of academic review, but they’re far superior to nothing.) It treats cursorily an extraordinarily rich and complex topic in intellectual property. It is intellectually lazy – the piece cites an article by Fred Yen, two by Justin Hughes, one by Frank Easterbrook, and one by Jane Ginsburg (along with a student note, and three books). Thus, it fails utterly to engage the thoughtful scholarship that takes up the natural rights argument, including by AdamMossoff and Mark Schultz among others. (The paper is too slipshod even to cite its intellectual allies. Nice.) And, ironically, it is utilitarian in purpose – the paper’s existence is driven not by academic curiosity, but by the policy needs of its paymasters.

Lastly, while the paper purports only to be a descriptive, historical analysis, it fails to consider counterarguments. (Indeed, it doesn’t even bother to cite the best historical account of the drafting of the IP Clause, by Dotan Oliar.) Take for example the claim that intellectual property deserves greater protection under a Lockean analysis than physical property. That claim fails to consider the difficult demarcation problem inherent in intellectual property: when an author has drawn upon the intellectual commons to create a new work (say, West Side Story), how should rights be allocated? After all, part of the musical’s appeal is the creative output of Sondheim and Robbins, and part is from the classic narrative provided by Shakespeare (who himself drew upon earlier sources). This line-drawing problem is much harder – in determining the scope of the right to exclude – than it is for physical objects, which at least have thingness (you can put an apple in your pocket) to help us set boundaries. This suggests that IP should receive less protection than physical property, not more. It is quite difficult to determine the relative contributions of the commons and the creator.

Second, if copyright is based upon labor desert, and therefore is treated like property, why on earth does the Constitution provide that the right to exclude terminates? Title to physical property lasts forever. Copyright seems like it does, but the Constitution sets an outer bound: it can endure only for “limited Times.” That limitation in itself suggests, at least, a significant admixture of utilitarian thinking in the IP clause.

But I’m spending more time on this article than it deserves. It will happily land on the dustbin of history. And, ironically, it should lend some comfort to utilitarian critics of copyright: the shift in tone, and tactics, suggests they are starting to gain traction.

Update: I meant to include in the original post that this paper is really just another sales tactic in the political economy of intellectual property. For a thoughtful discussion of that topic, I recommend Dan Hunter’s book on IP.

[…] not really accurate) idea that he thought copyright was property. Derek Bambauer, in talking about just how inaccurate and ridiculous the RIAA paper is, reminds us of Dotan Oliar’s incredibly detailed paper on the origins of the US Copyright […]

[…] not really accurate) idea that he thought copyright was property. Derek Bambauer, in talking about just how inaccurate and ridiculous the RIAA paper is, reminds us of Dotan Oliar’s incredibly detailed paper on the origins of the US Copyright […]

The US Constitution empowers Congress to SECURE the author’s (“solemnly adjudged to be a common law”) right to exclude others from their writings for limited times.

In 1787, in the New World and Old, most of those in the publishing industry were kidding themselves that a reproduction monopoly was a natural right and the Statute of Anne (and various states’ legislative imitations) a paltry legal recognition thereof. This is why James Madison (despite Jefferson’s suggestion to explicitly empower the granting of monopolies) knew he only needed to empower Congress to secure a right, in order to grant the monopoly of copyright. By legislating copyright in 1790, most of those interested would accept this as the securing of a natural right (despite the fact that Madison & Jefferson knew damn well the first US copyright act, the Statute of Anne with minor edits, was the granting of a monopoly) – “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.

Madison (who wanted copyright enacted) knew a clause empowering Congress to grant monopolies would not have been ratified, hence his insertion of a clause that secured a right – a pre-existing right (“endowed by their Creator with certain unalienable Rights”).

The point is, although the clause was APPARENTLY sufficient to enable Madison/Congress to grant copyright (by way of securing a common law right as others would assume) it was not ACTUALLY sufficient. Copyright is a state granted monopoly and not at all a common law right.

So, Congress did not have power to grant copyright. It only had power to secure an author’s natural right to exclude others from their writings, i.e. our physical power to exclude burglars from copying our memoirs in our desk drawers (natural right) – not to exclude those who purchase copies of those memoirs from us from making and distributing their own copies (privilege).

I think that those people wanting to modify should look at practicality. The reason a copyright terminates is because the public has a right to access works and can do so easily when the copyright expires. But an alternative and even better access policy would be to protect the rights of works being actively made available…for book a recent publication and open sale of the book…for films…continued distribution and availability…failure to make available to the public should automatically put it in the Public Domain but continued active availability might work to continue the copyright protection. I would decrease the coverage period for inactive works and prolong the coverage of actively available works. Disney would like that just fine but think of all the protected works that are not made available and which would go to the Public Domain…after ten years of lack of avaiabilit?